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In terms of the Hague Invasion Act the US can invade the Netherlands and the Hague and remove Netanyahu and Gallant to prevent any form of prosecution by the International Criminal Court for war crimes and crimes against humanity.
by SOZARN BARDAY
ON May 20, 2024, Karim Khan, the chief prosecutor of the International Criminal Court (ICC), applied for arrest warrants against Hamas and Israeli leaders.
Khan had reasonable grounds to believe that Israeli Prime Minister, Benjamin Netanyahu, and Defence Minister Yoav Gallant had committed war crimes and crimes against humanity in the context of the ongoing genocide.
Simultaneously, the prosecutor sought warrants for Hamas leaders Mohammed Diab Ibrahim al-Masri, Yahya Sinwar and Ismail Haniyeh, alleging that they had also committed the very same crimes.
Now Israel has been operating with complete impunity within Palestinian territory, systematically and intentionally depriving civilians in the Gaza Strip of any chance of survival. These methods include attacks on civilians queuing for food, obstructing aid from humanitarian agencies and killing aid workers.
It is clear that Israel uses starvation as a weapon of war. But even war has its limitations and prohibits the starvation of civilians. This is clearly set out in the Rome Statute of the International Criminal Court which expressly states: depriving civilians of basic items of survival and delaying or hampering relief supplies is a war crime. Despite this, the Israeli occupation force strategically blocks the delivery of food, water and fuel while obstructing humanitarian assistance. Such methods are openly supported by high-ranking Israeli officials such as Gallant, Itamar Ben-Gvir, and Israel Katz.
Khan goes further to state that his office has reasonable grounds to believe that Hamas is ‘criminally responsible for the killing of hundreds of Israeli civilians during the October 7 attacks’. According to Khan these alleged acts ‘demand accountability’. Khan even went so as far to state that the captives held in Gaza have been kept in ‘inhumane conditions and that some have been subject to sexual violence, including rape, while being held in captivity’.
However, these accusations towards Hamas lack substantial evidence and equates the perpetrator with the victim.
For the last 76 years Israel has occupied Palestine and has persistently deprived over two million people from living freely and with dignity in the Gaza strip. It has restricted residents from travelling to the West Bank; prevented professionals from furthering their careers; restricted international travel, the right to work and education.
Relentlessly, Israel continues to strangle, starve, and isolate Gaza, managing to create the largest open-air prison with the help of Egypt.
It is with this background that Hamas stood up for Palestinians, asserted its right to self-determination and proceeded to ensue Operation Al-Aqsa Flood.
To date, Hamas has confirmed that the operation set out to target Israeli military sites and to capture soldiers so that they may be exchanged for thousands of imprisoned Palestinians. The armed wing of the organisation, Al-Qassam Brigades, stated that harming civilians goes against its religious and moral code. If any targets were made on civilians, then it was to address any confrontation. Ultimately, many Israelis were killed by the Israeli occupation force and not by Al-Qassam.
It is important to note that Israel is not a signatory to the Rome Statute, a treaty which established the ICC, nor does it recognise the court’s jurisdiction. Nevertheless, Palestine, has been a member state since 2015.
Usually, the court would not be able to investigate Israel. However, the court’s jurisdiction extends to crimes committed by a party state or on the territory of its member states, and this includes Palestine.
Accordingly, the court can investigate crimes and issue arrest warrants against Israeli perpetrators Netanyahu and Gallant.
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In response, the US president Joe Biden criticised the ICC for placing Israeli officials on the same standard as Hamas.
Meanwhile, Israeli defenders have warned the ICC against such warrants and is calling upon the American Service-Members’ Protection Act in 2002, more commonly known as the Hague Invasion Act.
In terms of the Act the US President can authorise the use of force against the court if any US allied country, such as Israel, is held by the ICC. In other words, the US can invade the Netherlands and the Hague and remove Netanyahu and Gallant to prevent any form of prosecution for war crimes and crimes against humanity.
Needless to say, the US assisted in drafting the Rome Statute despite being hostile towards the ICC since inception. The Hague Invasion Act exemplifies this tension. To date, the US is one of the few countries that is not party to the Statute.
The Act not only prevents local, state and federal governments from co-operating with the ICC, but it also restricts law enforcement and national security from sharing information with the ICC and signatories to the court, which is used to apprehend and investigate suspects. The Act even goes so far as to demand immunity for its soldiers who participate in UN peacekeeping missions.
It is evident that the US has limitations in terms of co-operating with the ICC.
It begs the question, when the warrants are issued to the senior Israeli officials, will the US invoke the Hague Invasion Act?
Now the US Army, Navy, Air Force and Marine Corps has an annual budget of $842 billion – excluding psychological support, family assistance, and caring for injured soldiers. However, this budget comes at a cost. The US has more than $34 trillion in debt which is steadily on the rise each year. Given the level of debt, the US cannot afford to spend another billion on a new war. In addition, public opinion has largely opposed the US engaging in another war. There is a growing call for the US to focus on internal issues such as education, health care and the housing crisis rather than foreign conflicts. In other words, invoking the Hague Invasion Act would ultimately cripple its economy.
Thus, it’s safe to say that even if the US wanted to invoke the Hague Invasion Act, it cannot. However, nothing stops it from sanctioning members of the ICC.
But what about the ongoing genocide? It is unlikely that the arrest warrants will bring an end to the ongoing genocide. Israel’s goal is to eliminate Hamas and to remain in power. It is well aware that should the war stop, someone will need to take responsibility for the countless crimes.
Nevertheless, when the warrants are issued against Netanyahu and Gallant the game will change. It not only highlights that Israel is a place where international crimes are committed but also a place that harbours criminals. It will let the mask of Israel fall further.
- Sozarn Barday is an attorney based in Cape Town and has a particular interest in human rights within the Middle East.
This article was first published in the June 7, 2024 print edition of Muslim Views.
